Crack and Powder, Purity and Progress

Salon columnist Joe Conason whacked U.S. Supreme Court nominee Elena Kagan because, as deputy director of President Bill Clinton's Domestic Policy Council in 1997, she supported a compromise measure to reduce, but not eliminate, the 100-to-1 disparity on federal mandatory minimum sentences for crack versus powder cocaine. In a piece headlined "To Kagan, sounding 'tough' trumped simple justice," Conason suggested that an enterprising senator ask Kagan "whether she feels any shame over her evident eagerness to sacrifice decency for expediency."

Some 13 years later, the 100-to-1 disparity remains. Offenders who possess 5 grams of crack -- less than the weight of two sugar packets -- face a federal mandatory minimum sentence of five years in prison. The five-year threshold for powder cocaine is dealing 500 grams. Race has to be a factor here, as 4 out of 5 of federal crack offenders were black in 2006, while blacks made up comprised 27 percent of powder offenders.

In March, the Senate passed a compromise bill by Sen. Dick Durbin, D-Ill., to reduce the crack/powder disparity to 18-to-1. The bill passed by unanimous consent -- which should make it a shoo-in. Instead, the bill is languishing in the House Judiciary Committee.

In an election year, it's always safer to do nothing.

Julie Stewart, the president of Families Against Mandatory Minimums, is concerned. FAMM would much prefer a bill that eliminates the crack/powder disparity entirely, but Stewart has been working to reform the 1986 drug law for 15 years. She sees a chance to repeal a mandatory minimum sentence -- the five-year sentence for possessing, not dealing, 5 grams of crack -- for the first time since the Nixon administration.

Now all that's needed is to get House Repubs and Dems to go along.

Ward Connerly, founder of the American Civil Rights Institute, co-signed a letter urging House Republicans to support the Durbin bill. Many of his GOP friends, he said, are afraid of appearing too soft on crime, he observed, but "conservatives ought to be the first ones to be willing to look at a system that is broken and working on improving it."

On the left, some Democrats do not want to compromise. They support a 1-to-1 ratio bill passed last year in the House Judiciary Committee. I, too, would support uniform sentencing, as crack and powder are both cocaine -- if it had a prayer of passing a floor vote.

House Speaker Nancy Pelosi spokesman Drew Hammill said in an e-mail that Pelosi supports "measures that have been reported out of the House and Senate Judiciary committees, and such efforts need strong bipartisan support."

That seems to put the ball squarely in the GOP's court -- where it does not belong. As Stewart noted, "It's really not the Republicans' job to bring it up. It's the Democrats'."

If anything, the Durbin bill makes Kagan look like a seer. In 1997, she and her policy colleagues opposed the Sentencing Commission's 1995 recommendation to apply the five-year minimum for 500 grams of either crack or powder in favor of a proposal to trigger a five-year sentence for 25 grams of crack or 250 grams of powder cocaine.

"The one downside of this recommendation is that the proposed approach risks placing the (Clinton) administration in the center of a debate that has no center -- with members of Congress attacking from both directions," Kagan and domestic policy adviser Bruce Reed wrote in a 1997 memo.

In 2010, the dynamics have changed little -- except that both sides have gotten better at blaming the other guy for inaction. There is no center. Everyone's pure and there is no progress.